NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 312 OF 2010

LALTU GHOSH ...APPELLANT

VERSUS

STATE OF WEST BENGAL ...RESPONDENT

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

 The judgment dated 15.05.2009 passed by the High

Court of Calcutta in Government Appeal No. 30 of 1987 is

called into question in this appeal by the convicted

accused.

2. The case of the prosecution in brief is that there was

a dispute between Ananta Ghosh (accused, since deceased)

and the victim Keshab, his neighbour, concerning the

boundary of the landed property in which they had their

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respective houses; about 9.30 am on 30.04.1982, accused

Ananta Ghosh called the deceased Keshab by standing in

front of the house of the deceased; the deceased

accordingly came out of his house and his son PW­1

followed him; at that point of time, Ananta Ghosh picked a

quarrel with the deceased and thereafter instigated his sons

Laltu Ghosh and Paltu Ghosh as well as his friend Sakti @

Sero Karmakar to assault the deceased; Laltu Ghosh

punched the deceased on the face and thereafter stabbed

the  accused in the  abdomen;   though the  deceased fell

down, he got up immediately and thereafter started to run

away; but Paltu Ghosh stabbed the deceased on his back,

who fell down near the tea stall of one Tabal; he was taken

to the Primary Health Centre, Kaliaganj in the rickshaw of

one Madan where he was treated by Dr.  Roychowdhury,

PW­18, who gave him first aid and recorded the statement

of the deceased; later, the victim was sent to Krishnanagar

Hospital for better treatment.

3. The statement of the victim  was recorded by  Dr.

Roychowdhury (PW­18) and the same  was treated as a

dying declaration, since soon after such treatment the

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victim succumbed to his injuries on the way to the hospital.

His son PW­1 lodged the First Information Report (FIR) at

10.45 a.m. on the very same day, i.e. 30.04.1982.  

4.  The police filed the charge­sheet against four

accused, viz. Laltu Ghosh, Paltu Ghosh, Ananta Ghosh and

Sakti @ Sero Karmakar.  The Trial Court upon appreciation

of the  material  on record acquitted all the  accused.  The

State filed an appeal before the High Court, which came to

be allowed  in part by the  impugned judgment. The High

Court convicted Laltu Ghosh, who is the appellant herein.

The High Court also declared that Paltu  Ghosh  was a

juvenile on the date of the incident. The accused Ananta

Ghosh and Sakti Karmakar expired during the pendency of

the appeal before the High Court. Hence, this appeal by the

convicted accused Laltu Ghosh.

5.  There are four eye­witnesses to the incident in

question, viz. PW­1, PW­2, PW­3 and PW­4.   Out of them,

PW­2 and  PW­3  have turned  hostile to the case of the

prosecution. PW­1 is the son of the deceased and PW­4 is

the wife of the deceased. The prosecution, apart from the

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versions of the eye­witnesses, relied upon the dying

declaration, Ext. 4.

6. Learned counsel for the appellant, having taken us

through the material on record submits that the High Court

was not  justified in allowing the appeal of  the State and

convicting the appellant herein, since the evidence of PW­1

and PW­4 cannot be believed in view of the material

contradictions found in their evidence; PW­1 and PW­4 are

none other than the son and the wife of the deceased and

therefore the Trial Court on meticulous and careful

consideration of the evidence of these witnesses concluded

that their evidence cannot be believed; the dying

declaration was also found to be shaky by the Trial Court;

the Trial Court had accorded reasons for rejecting the dying

declaration; and that the High Court has failed to analyse

the entire evidence and material on record and has failed to

meet the reasons given by the Trial Court upon taking the

evidence and material into consideration.

7. Per contra, it is argued by the learned counsel

appearing on behalf of the State that the High Court has

rightly rejected the findings of the Trial Court that the post

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mortem report was not of the deceased; there is absolutely

no  doubt  about the  persons  who  caused injuries to the

deceased; the High Court was justified in applying the

principle of common intention; and that the High Court has

assigned valid reasons as to  why the dying declaration

should not have been discarded by the Trial Court.  On the

basis of these, among other grounds, he prays for

confirming the judgment of the High Court.   

8.  To satisfy our conscience, we have gone through the

evidence of PW­1 and PW­4. PW­1 had deposed that about

9­9.30 a.m. on 30.04.1982, he and his father were at home,

sitting on a platform; the accused Ananta Ghosh called the

deceased from his house but the deceased initially refused

to come and told the accused Ananta Ghosh to come to the

road  in  front of  his house;  after  saying so, the deceased

went out of his house and PW­1 followed him; thereafter, a

verbal quarrel took place between the accused and the

deceased, and the accused Ananta Ghosh at that point of

time instigated his sons Laltu Ghosh and Paltu Ghosh as

well  as his friend Sakti  @ Sero Karmakar  to assault the

deceased; Laltu Ghosh dealt a blow to the deceased and

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thereafter stabbed him on his abdomen; the deceased made

an attempt to escape and had proceeded about 10 cubits

when Paltu Ghosh assaulted the deceased with a bhojali on

his back; despite  the same, the deceased made an attempt

to escape by running but Laltu Ghosh and Paltu Ghosh

chased him and ultimately, he fell near the tea stall of one

Tabal from where he was shifted to the hospital at

Kaliaganj.   The evidence of  PW­1  is consistent  with the

version of the prosecution.   His evidence could not be

shaken in the cross­examination in respect of the

occurrence of the incident in question.  Even in the cross­

examination, PW­1 has stated that the appellant had

concealed a sharp­cutting weapon, i.e.  kirich, in a napkin

and had come fully prepared for committing the murder.

9. The evidence of PW­1 is fully supported by the

evidence of PW­4. She has also deposed about the exchange

of  words between  the  deceased and  the  accused Ananta

Ghosh; about Ananta  Ghosh instigating his sons Laltu

Ghosh and Paltu Ghosh, and his friend Sakti @ Sero

Karmakar  to  assault the  deceased;  about the  assault  by

Laltu Ghosh in the first instance and thereafter by Paltu

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Ghosh at the  back  of the  deceased;  about the  deceased

trying to escape and running towards the tea stall, etc. She

has also deposed about the first aid given to the deceased

at the Primary Health Centre, Kaliaganj and thereafter

about shifting him to Krishnanagar Hospital. She has

further deposed about the victim’s statement being

recorded at the  Primary  Health  Centre,  Kaliaganj,  which

was ultimately treated as his dying declaration. She

withstood the lengthy cross­examination.

10. We find that the evidence of PW­1 and PW­4 is

consistent, cogent, reliable and trustworthy. Their presence

at the scene of the incident is  natural inasmuch as the

incident took place in front of their house, and that too in

the  morning, at a time  when  PW­1  and  PW­4 could  be

expected to be at home. Though the incident started with a

verbal quarrel between the deceased and the accused

Ananta Ghosh, the appellant along with his brother entered

the scene after being instigated by their father Ananta

Ghosh; both the brothers, namely, Laltu Ghosh and Paltu

Ghosh came to the spot  fully  armed with a  kirich  and a

bhojali; the victim was not spared by the accused though he

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tried to escape from the scene of the occurrence;   he was

chased by the appellant and Paltu Ghosh and ultimately,

the victim fell in front of a tea stall; the victim was able to

give his statement before the doctor PW­18 who treated him

at the first instance at the Primary Health Centre,

Kaliaganj.

11. We do not find any major contradiction in the

evidence of these witnesses. Minor variations, if  any, will

not tilt the balance in favour of the defence in the facts and

circumstances of the present case. The defence could not

elicit  any contradiction in the cross­examination of PW­1

and PW­4.  In our considered opinion, the High Court has

rightly believed the evidence of these witnesses, particularly

since minor discrepancies on trivial matters do not in and

of themselves affect the core of the prosecution case.

Hence, it is not open for the Court to reject the evidence

only in light of some minor variations and discrepancies.

12.   As regards the contention that the eye­witnesses are

close relatives of the deceased, it is by now well­settled that

a related witness cannot be said to be an ‘interested’

witness merely by virtue of being a relative of the victim.

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This Court has elucidated the difference between

‘interested’ and ‘related’  witnesses in a plethora of cases,

stating that a witness may be called interested only when

he or she derives some benefit from the result of a

litigation,  which  in  the  context  of  a  criminal  case would

mean that the witness has a direct or indirect interest in

seeing the accused punished due to prior enmity or other

reasons, and thus  has  a  motive to falsely implicate the

accused (for  instance, see  State of Rajasthan v. Kalki,

(1981) 2 SCC   752;  Amit v. State of  Uttar Pradesh,

(2012) 4 SCC 107; and  Gangabhavani v. Rayapati

Venkat Reddy, (2013) 15 SCC 298).   Recently, this

difference was reiterated in Ganapathi v. State of Tamil

Nadu, (2018) 5 SCC 549, in the following terms, by

referring to the three­Judge  bench  decision in  State  of

Rajasthan v.  Kalki (supra):

“14.  “Related”  is  not  equivalent to “interested”.  A witness may be called “interested” only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in

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the circumstances of a case cannot be said to be “interested”...”

13.  In criminal cases, it is often the case that the offence is

witnessed by a close relative of the victim, whose presence

on the scene of the offence would be natural. The evidence

of such  a  witness  cannot  automatically  be  discarded  by

labelling the witness as interested. Indeed, one of the

earliest statements with respect to interested witnesses in

criminal cases was made by this Court in Dalip Singh v.

State of Punjab, 1954 SCR 145, wherein this Court

observed:

“26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity  against the  accused, to  wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person…”

14.   In case of a related witness, the Court may not treat

his or her testimony as  inherently tainted,  and needs to

ensure only that the evidence is inherently reliable,

probable, cogent and consistent. We may refer to the

observations of this Court in  Jayabalan v. Union

Territory of Pondicherry, (2010) 1 SCC 199:

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“23.  We are  of the  considered view  that in  cases where the  Court is called  upon to  deal  with the evidence of the interested witnesses, the approach of the Court while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested  witnesses but the Court must not be suspicious of such evidence. The primary endeavour of the Court must be to look for consistency.  The evidence of  a  witness cannot  be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim.”

15.   In the instant matter, as already discussed above, we

find the testimony of the eye­witnesses to be consistent and

reliable, and therefore  reject the contention of the

appellants that the testimony of the eye­witnesses must be

disbelieved because they are close relatives of the deceased

and hence interested witnesses.

16. The FIR discloses that the doctor PW­18 examined

the victim at the first instance and recorded his statement,

in which the victim narrated the occurrence including the

names of the assailants. The dying declaration Ext. 4

recorded by the doctor PW­18 shows that the victim was

first assailed by the accused Ananta Ghosh, and thereafter

by  Paltu Ghosh,  who stabbed  the  victim’s  back,  and by

Laltu Ghosh, who served a blow on the victim’s abdomen

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with a kirich.  The Trial Court has given more weightage to

the minor variations found in the evidence of the

prosecution witnesses as compared to the information

found in the dying declaration.

17.  The courts cannot expect a victim like the deceased

herein to state in exact words as to what happened during

the course of the crime, inasmuch  as it  would be very

difficult for such a victim, who has suffered multiple

grievous injuries, to state all the  details of the incident

meticulously  and that too  in  a  parrot­like manner.  The

Trial Court assumed that the Investigation Officer in

collusion with the doctor wilfully fabricated the dying

declaration. It is  needless to  state that the Investigation

Officer and the doctor are independent public servants and

are not related either to the accused or the deceased.  It is

not open for the Trial Court to cast aspersions on the said

public  officers in relation  to the  dying  declaration,  more

particularly when there is no supporting evidence to show

such fabrication.   

18.  It cannot be laid down as an absolute rule of law that

a dying declaration cannot form the sole basis of conviction

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unless it is corroborated by other evidence. A dying

declaration, if found reliable, and if it is not an attempt by

the deceased to cover the truth or to falsely implicate the

accused, can be safely relied upon by the courts and can

form the basis of conviction.   More so, where the version

given by the deceased as the dying declaration is supported

and corroborated by other prosecution evidence, there is no

reason for the courts to  doubt the truthfulness  of such

dying declaration. The doctor PW­18, who recorded the

statement of the deceased which was ultimately treated as

his dying declaration, has fully supported the case of the

prosecution by deposing about recording the dying

declaration. He also deposed that the victim was in a  fit

state of mind while making the said declaration. We also do

not find any material to show that the victim was tutored or

prompted by anybody so as to create suspicion in the mind

of the Court.  Moreover, in this case the evidence of the eye­

witnesses,  which is fully reliable, is corroborated  by the

dying declaration in all material particulars. The High

Court,  on reappreciation of the  entire  evidence before it,

has come to an independent and just conclusion by setting

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aside the judgment of acquittal passed by the Trial Court.

The High Court has found that there are substantial and

compelling reasons to differ from the  finding of  acquittal

recorded by the Trial Court. The High Court having found

that the view taken by the Trial Court was not plausible in

view of the  facts  and circumstances of the case,  has  on

independent evaluation and by assigning reasons set aside

the judgment of acquittal passed by the Trial Court.   We

concur with the judgment of the High Court, for the

reasons mentioned supra.

19. Thus, we do not  find any valid ground to  interfere

with the impugned judgment of conviction passed by the

High  Court. Accordingly, the appeal fails and is hereby

dismissed.  

                            …………………………..……....J.                                           [Mohan M. Shantanagoudar]

                                    ...……………………..…..…J.             [Dinesh Maheshwari]    

New Delhi; February 19, 2019.

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